University of Missouri School of Law Scholarship Repository Faculty Publications 2012 Arbitration of Trust Disputes: Two Bodies of Law Collide S. I. Strong University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Dispute Resolution and Arbitration Commons, and the Property Law and Real Estate Commons Recommended Citation S.I. Strong, Arbitration of Trust Disputes: Two Bodies of Law Collide, 45 Vand. J. Transnat'l L. 1157 (2012) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Legal Studies Research Paper Series Research Paper No. 2012-08 Arbitration of Trust Disputes: Two Bodies of Law Collide S.I. Strong 45 VANDERBILT JOURNAL OF TRANSNATIONAL LAW __ (forthcoming 2012) This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection at: http://ssrn.com/abstract=2035560 Electronic copy available at: http://ssrn.com/abstract=2035560 Arbitration of Trust Disputes: Two Bodies of Law Collide S.I. Strong* Once considered nothing more than “mere” estate planning devices, trusts play a large and growing role in the international economy, holding trillions of dollars of assets and generating billions of dollars of income each year. However, the rising popularity of both commercial and non-commercial trusts has led to an explosion in hostile trust litigation, leading settlors and trustees to search for new and less expensive ways to resolve trust-related disputes. One possible solution involves use of a mandatory arbitration provision in the trust itself. However, the unique, multiparty nature of trust disputes often makes this sort of arbitration highly controversial. Several U.S. states have taken diametrically opposed positions on mandatory trust arbitration, although the vast majority of jurisdictions have not yet addressed this matter. This Article considers the various issues that arise when two separate bodies of law – trust law and arbitration law – collide, using recent developments in the field of international commercial arbitration to address some of the more intransigent problems facing trust arbitration. The Article focuses on five areas of concern: the potential for impermissible ouster of the courts, the operability and effectiveness of the arbitration provision, the extent to which the arbitration provision is binding on the party against whom arbitration is asserted, proper representation of parties and arbitrability. In so doing, this Article introduces a number of new judicial decisions not previously considered in the scholarly literature and brings using a uniquely comparative and international perspective to the debate regarding the jurisprudential propriety of mandatory trust arbitration. TABLE OF CONTENTS I. Introduction 2 II. An Introduction to Trusts and Trust Law Theory 11 A. What is a Trust 12 B. Types of Trusts, Including Commercial Trusts 14 C. The Theoretical Basis of Trusts 17 1. The donative theory of trusts 17 2. The contract theory of trusts 20 3. Other theories of trusts 23 III. Arbitration of Trust Disputes 25 A. Benefits of Arbitration 25 B. Trustees’ Powers to Arbitrate 30 C. Settlors’ Powers to Compel Mandatory Trust Arbitration 36 1. Legislation in Favor of Mandatory Trust Arbitration 36 2. Elements Required for Mandatory Trust Arbitration 39 Under Common Law Principles 1 Electronic copy available at: http://ssrn.com/abstract=2035560 a. No impermissible ouster of the court’s jurisdiction 40 i. Arbitration as a litigation substitute 41 ii. Special issues regarding judicial 48 accounting and instruction b. An arbitration clause that is operable, effective 53 and capable of performance i. Solutions suggested under national law 54 ii. Solutions suggested under international law 57 c. An arbitral clause that is binding on the party 64 seeking to avoid arbitration i. Issues involving settlor consent 64 ii. Issues involving consent of parties other 74 than the settlor d. Proper representation 77 e. Subject matter arbitrable 83 IV. Conclusion 91 I. Introduction Trusts and their civil law equivalents, often known as foundations or associations,1 play a large and growing role in the international economy. Not only do trust vehicles hold assets valued in * D.Phil., University of Oxford (U.K.); Ph.D., University of Cambridge (U.K.); J.D., Duke University; M.P.W., University of Southern California; B.A., University of California, Davis. The author, who is admitted to practice as an attorney in New York and Illinois and as a solicitor in England and Wales, is the Henry G. Schermers Fellow at the Hague Institute for the Internationalisation of Law as well as Associate Professor of Law at the University of Missouri. The author is also a member of the American Law Institute (ALI) Consultative Groups for both the Restatement (Third) of Trusts and the Restatement (Third) of the U.S. Law of International Commercial Arbitration. Many thanks are due David M. English, David Horton and John H. Langbein for comments and insights provided on earlier drafts of this Article. All errors of course remain the author’s own. 1 Although trusts developed historically as a common law device, civil law jurisdictions are becoming increasingly involved in this field, either through the development of their own domestic forms of trusts or the recognition of trusts formed in common law countries. See Henry Christensen III, Foreign Trusts and Alternative Vehicles, 1902 PLI/CORP. 323, §4 (Aug. 18-19, 2011); Adair Dyer, International Recognition and Adoption of Trusts: The Influence of the Hague Convention, 32 VAND. J. TRANSNAT’L L. 989 (1999); Dante Figueroa, Civil Law Trusts in Latin America: Is the Lack of Trusts an Impediment for Expanding Business Opportunities in Latin America? 24 ARIZ. J. INT’L & COMP. L. 701, 703-07, 721-51 (2007); Frances H. Foster, American Trust Law in a Chinese Mirror, 94 MINN. L. REV. 602, 637-50 (2010); Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. REV. 434, 437-45 (1998); Michael Hwang, Arbitration of Trust Disputes, in GUIDE TO THE WORLD’S LEADING EXPERTS IN COMMERCIAL ARBITRATION 83, 84 (Legal Media Group ed., 2009); John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107 YALE L.J. 165, 186 (1997) [hereinafter Langbein, Commercial Trusts]; John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 YALE L.J. 625, 629, 632-43, 669-71 (1995) [hereinafter Langbein, Contractarian]; 2 Electronic copy available at: http://ssrn.com/abstract=2035560 the trillions of dollars and generate billions of dollars each year in income, but administrators and trustees accumulate similarly massive amounts in annual fees.2 With a rising number of trusts moving into the international realm so as to take advantage of favorable tax laws in various offshore jurisdictions, trusts have become an issue of global importance.3 Furthermore, trusts are becoming increasingly commercial in nature, leaving behind their reputation as mere estate planning devices.4 The combination of international and commercial characteristics might suggest that arbitration would be an appropriate means of resolving trust disputes, since arbitration is very much the preferred means of resolving other types of international commercial controversies.5 Indeed, such an approach might already appear to be standard procedure, given the number of trusts that currently appear in arbitrations in the United States and elsewhere.6 However, the vast Maurizio Luponi, The Civil Law Trust, 32 VAND. J. TRANSNAT’L L. 967, 970-73 (1999); Julien Perrin, The Recognition of Trusts and Their Use in Estate Planning Under Continental Laws, 10 Y.B. PRIV. INT’L L. 629, 630 (2008); Steven L. Schwarcz, Commercial Trusts as Business Organizations: An Invitation to Comparativists, 13 DUKE J. COMP. & INT’L L. 321, 322 (2003); Tina Wüstemann, Arbitration of Trust Disputes, in NEW DEVELOPMENTS IN INTERNATIONAL COMMERCIAL ARBITRATION 2007, 33, 33-35 (Christoph Müller ed., 2007). For ease of discussion, the term “trust” will be used to refer to both civil law and common law devices, unless otherwise indicated. 2 See David Horton, The Federal Arbitration Act and Testamentary Instruments, 90 N.C. L. REV. __, *22 (forthcoming 2012) (noting irrevocable trusts in the United States “generated $188 billion in income and $4.7 billion in trustees’ fees” in 2008 alone); Langbein, Commercial Trusts, supra note 1, at 177-78 (estimating in 1997 that commercial trusts held assets in the range of $11.6 trillion, with non-commercial trusts holding an additional $672 billion). 3 See Wüstemann, supra note 1, at 33-34. The expanded use of international trusts has been facilitated by the enactment of the Hague Convention on the Law Applicable to Trusts and on Their Recognition (Hague Convention on Trusts). See Convention on the Law Applicable to Trusts and on Their Recognition, 1 July 1985, 23 I.L.M. 1389, 1389-92 (1984) [hereinafter Hague Convention on Trusts]. The Hague Convention on Trusts has been ratified or acceded to by Australia, Canada, Italy, Liechtenstein, Luxembourg, Malta, Monaco, The Netherlands, San Marino, Switzerland and the United Kingdom. See Hague Convention on Trusts, Status, available at http://www.hcch.net/index_en.php?act=conventions.status&cid=59. It has been signed but not ratified by Cyprus, France and the United States. See id. 4 See Langbein, Commercial Trusts, supra note 1, at 166. 5 See GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 68-71 (2009). 6 Evidence of trust-related arbitration can be found in various judicial opinions. See Dallah Real Estate & Tourism Holding Co. v. Pakistan, [2010] UKSC 46, ¶¶1-2, 7 (Lord Mance); Fili Shipping Co.